Trade secret protection and patent protection have always overlapped. The question owners of these intellectual property rights always have to ask themselves is which protection would better suit their intellectual property needs, if in fact not both.
The strategic considerations revolve around the ability to procure protection, procedural advantages, duration of rights, ability to reverse engineer or independently discover, and remedies. With the U.S. Supreme Court’s decision in Alice v. CLS Bank International, 134 S. Ct. 2347 (2014), and the enactment of the Defend Trade Secrets Act of 2016 (DTSA), which followed the Texas Uniform Trade Secrets Act (TUTSA), trade secrets are becoming increasingly more viable and advantageous for intellectual property owners.
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